GAGGING THE DOCTORS

By Paul Gray

THE AMERICAN MEDICAL ASSOCIATION is growing feverish about them. A number of physicians who have joined up have found them toxic to their employment prospects. And many patient-clients are questioning the candor of their medical guidance. They are for-profit health-management organizations (HMOs). The aggravating agent is a clause in many HMO contracts, variously described by critics as a "loyalty oath" and a "gag rule," that forbids doctors to reveal certain sorts of information, including treatment options, to anyone, including their patients. The A.M.A. House of Delegates has ruled that such restrictions "are not in the best interests of patients and physicians.''

At least one doctor has been even more outspoken about the conflict between the Hippocratic oath and the cost-controlling imperatives of the HMOs. David Himmelstein, 45, an associate professor at the Harvard Medical School and a persistent critic of for-profit HMOs, signed on a year ago with U.S. Healthcare, a $2.9 billion behemoth whose 65,000 doctors and 2.3 million members make it the largest HMO on the East Coast.

Last November, at a meeting of the National Managed Health Care Congress, Himmelstein gave a presentation during which he showed slides of, among other things, what he called the "gag clause" in his U.S. Healthcare contract. Two weeks later, he took his complaints to the Donahue show and said, "one of the HMOs that I practice in tells me I can't tell my patients if there's something wrong [with what] the HMO insists I do."

Three days later, U.S. Healthcare told Himmelstein his contract was being terminated. David Simon, U.S. Healthcare senior vice president, denies that Himmelstein was canned for anything he said: "Given the fact that he has expressed a lack of comfort with us, we assumed that he no longer wanted to participate and that he would have welcomed the notice that we provided to him."

What was the "gag clause" that drew Himmelstein's ire? In his U.S. Healthcare contract he found the following: "Physicians shall agree not to take any action or make any communication which undermines or could undermine the confidence of enrollees, potential enrollees, their employers, their unions, or the public in U.S. Healthcare or the quality of U.S. Healthcare coverage." A further proviso stipulated that "physicians shall keep the Proprietary Information and this Agreement strictly confidential." Himmelstein says he found the whole restriction "so obnoxious I crossed it out" before signing. The emended contract was accepted without complaint.

What is it that doctors are contractually bound not to tell people under their care? Most crucially, according to Himmelstein and other critics of for-profit HMOs, the dirty little secret is how their doctors' pay may go up if they limit the treatments they provide or recommend. Himmelstein charges that many HMOs "offer doctors steep financial incentives--what I consider bribes--to minimize care." In his U.S. Healthcare agreement, he says, he was promised bonuses based on a formula for keeping his patients out of hospitals; if the total number of days they spent hospitalized exceeded a fixed number, he would receive no money at all.

HMOs arose and have flourished in the U.S. largely in response to the runaway medical costs engendered under the fee-for-service approach, in which doctors have an interest in doing everything their patients might require, and possibly more than that, provided an insurer is paying the tab. But Himmelstein and other physicians believe the bottom-line philosophy of for-profit HMOs has pushed the pendulum too far in the opposite direction.

Why did he join the type of organization he had previously criticized? "If you want to treat patients these days," says Himmelstein, "you have to become a part of HMOs." Other physicians have felt these pressures and become similarly, if less vocally, disillusioned with HMO practices. One Los Angeles doctor worked dutifully for three years as a neurologist for CIGNA HealthCare, a large HMO. When she advised the mother of a brain-damaged boy that a muscle biopsy might help diagnose the extent of his condition, she was chided by her bosses for suggesting the test. "I was told it was a mistake to tell the patient about a procedure before checking to see whether it was covered," she says. "It was as if I was a store vendor and was only supposed to advertise the products we offered." After several similar incidents, she eventually quit her HMO and joined a neurologist's fee-for-service practice in Lubbock, Texas, where she feels she can better serve the interests of her patients.

U.S. Healthcare's Simon argues that "there is nothing in our contract that should be construed as interfering with the physician-patient relationship. Doctors are encouraged to have open communications with their patients, about treatment, coverage, benefits, even the mechanism by which they are paid. It's just the specific dollar amounts that are to be withheld." But the contract terms cited by Himmelstein seem to prescribe a far greater circumspection from doctors than that.

--Reported by Wendy Cole/Chicago and Jenifer Mattos/New York

With reporting by WENDY COLE/CHICAGO AND JENIFER MATTOS/NEW YORK